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SLAVES, GLADIATORS, AND DEATH: KANTIAN LIBERALISM AND THE MORAL LIMITS OF CONSENT

Published online by Cambridge University Press:  14 August 2017

Marc Ramsay
Marc Ramsay*
Affiliation:
Acadia University, Nova Scotia, Canada
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Abstract

Irving Kristol invoked the example of voluntary gladiatorial contests to show that liberalism's commitment to personal autonomy cannot override majoritarian standards of morality. Liberalism cannot explain why voluntary gladiatorial contests should be banned, but liberals know that such contests should be banned. Thus, honest liberals must concede that majoritarian morality trumps consent. Arthur Ripstein argues that the consent in gladiatorial agreements contains a formal defect. According to Ripstein, because both gladiators sanction their own deaths, both reduce themselves to the status of mere things or slaves. On the Kantian view, slavery contracts undermine the personal sovereignty that binding contracts must presuppose, so Kantian liberals can reject gladiatorial contracts and still avoid legal moralism. I argue that while Kantian liberals have cogent internal reasons for rejecting slavery contracts, not all gruesome and deadly contests are matters of slavery. Thus, Kristol's challenge remains intact.

Type
Research Article
Information
Legal Theory , Volume 23 , Issue 2 , June 2017 , pp. 96 - 131
Copyright
Copyright © Cambridge University Press 2017 

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References

1. Joel Feinberg, Harmless Wrongdoing (1990), at 128; Editorial, The Fight, N.Y. Times, Mar. 10, 1971; Gurdip S. Sidhu, M.D., Letter to the Editor, N.Y. Times, Mar. 18, 1971.

2. Irving Kristol, Pornography, Obscenity, and the Case for Censorship, N.Y. Times Mag., Mar. 28, 1971, at 24.

3. Consider another example. Two men clad only in shorts and small fighting gloves are inside an eight-sided cage with chain-link fencing for walls. One man is on his back, his legs straddling the kneeling opponent who looms over him. For several seconds the man on the bottom is able to defend himself by controlling his opponent's hands. Soon, however, the bottom defender loses control, and he absorbs a quick elbow strike that cuts across his face, breaking his right orbital bone. He curls up in obvious pain, and the referee calls an end to the match. A decisive victory for the man on top. Those liberals willing to accept boxing, but not MMA, need to reflect on whether Kristol is right after all.

4. Feinberg, supra note 1, at 128–133; Arneson, Richard J., Liberalism, Freedom, and Community , 100 Ethics 368, 372 (1990)Google Scholar. See also Alexander, Larry, Plastic Trees and Gladiators: Liberalism and Aesthetic Regulation , 16 Legal Theory 77, 80–81 (2010)Google Scholar.

5. Arneson, supra note 4, at 371–373. Of course, recent empirical research makes the dispute between Arneson and Feinberg appear dated. According to Susan Hurley's survey of the relevant research, consumption of violent entertainments such as video games, movies, and sports does increase aggressiveness. Whether these empirical results are sufficient to justify coercive restrictions on individual liberty is hotly contested. However, suppose, as Hurley suggests, that the primary problem with such entertainments is that they encourage unconscious imitation. If so, then it is unclear whether Kristol's gladiatorial contests would pose a greater problem than existing consumption of the extreme simulated violence available in television and film. See Hurley, Susan, Imitation, Media Violence, and Freedom of Speech , 117 Phil. Stud . 165 (2004)CrossRefGoogle Scholar.

6. Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009), at 129.

7. Larry Alexander seems to have something like this constrained gladiatorial contest in mind in his discussion of legal moralism and aesthetic regulation. Alexander, supra note 4, at 84.

8. Ripstein, supra note 6, at 141 n.39.

9. The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy (Mary J. Gregor trans. & ed., 1996), at 387 (6:230).

10. Ripstein, supra note 6, at 33.

11. Id. at 35.

12. Id. at 64.

13. Id. at 37.

14. Id.

15. Id. at 38.

16. Id. at 134.

17. Id. at 121–126.

18. Id. at 127.

19. Id. at 138.

20. Id. at 139.

21. Id. at 135–136.

22. Id. at 136.

23. I cannot make any new bargains without your permission. But I do not think that anyone is entitled to make a new bargain that conflicts with her obligations under a previous bargain. So my inability to make new bargains does not entail a transfer of my capacity to make bargains. The inability to make new agreements is simply a consequence of the scope of the agreement. The capacity to make agreements remains with me, so we can still make sense of my obligation to abide our slavery agreement. An anonymous referee questions the source of the principle that A, having made a contract with B, cannot make any conflicting contracts. According to the referee, Ripstein's view recognizes no such right for B; B has a right to A’s performance. Nothing more. As I see it, we could say the same thing of an obligation slavery contract—the master simply has a right to your performance (but performance goes well beyond a specific act or set of actions).

24. An anonymous referee points out that Kantians such as Ripstein would have no objection to the web of contracts, precisely because the contractual web does not place me under the authority of a master. The web of obligation fills my dance card (referee's metaphor), but it does not put me under a master. I accept this much. My point is that a person has not lost (or transferred) their capacity to make (or abide) agreements just because they are no longer in a position to make new agreements. An obligation slavery contract may, unlike the web of obligation, run afoul of rightful honor, but it is not logically incoherent or self-contradictory.

25. Unlike G.A. Cohen, I still think that Kant and Ripstein are right in holding that persons, unlike things, cannot be owned. At least, they cannot be owned in the same sense as chattels. But my own argument draws inspiration from Cohen's argument that self-ownership, contra Kant, is conceptually cogent. See G.A. Cohen, Self-Ownership, Freedom, and Equality (1995), at 212–213.

26. Ripstein, supra note 6, at 136.

27. We should also note that, since the Kantian view of consent is transactional, my rights against others remain in place after my agreement with you. If I am harmed by a third party, perhaps you could order me to pursue my compensation rights against this person. You could then order me to turn over the damage awards to you. But what kinds of damages can the slave in an obligation slavery contract claim? Presumably, he would have virtually no claim for consequential economic loss.

28. We should also note other normative residue of personhood here. A slavery contract between you and me does not eliminate my rights against other persons. I have made no agreement with them. Functionally, my agreement with you may preclude me from enforcing such rights against other persons. However, there is an important sense in which these rights remain. Suppose that you eventually decide to release me from our slavery agreement. Once you do release me, the rights that I hold against others regain their practical significance—I am once again in a position to enforce them. Your act of contractual-release does not give me rights against other persons; it does not transform me from a thing into a person. I was always a person, albeit one who could be treated much like a thing during our contractual arrangement. If the agreement is waived, the practical significance of my personhood reemerges.

A defender of the cogency argument might complain that no historical slavery regime ever recognized my coherence-preserving conditions. But this is not relevant for our purposes. Liberals of all stripes would reject my imagined (though coherent) model of slavery just as firmly as they reject the actual historical models, and legal moralists such as Kristol could still press them for their reasons.

29. Even if one party should gain complete dominance in terms of threat advantage and power, he could not unilaterally release himself from the practical need to make use of this power. Under such an agreement, you might hold my life in your hands (for practical purposes), but now find our competition morally bankrupt, utterly deplorable. You could end your troubles by using your de facto power advantage to dispose of me, an option that now sickens you. But you could not simply declare the contest to be at an end. Your unilateral mercy (or return to moral sanity) could not, by itself, return to you the rights against me that you have waived. I have decided that I prefer death or torture to ending the game, so I refuse to afford you the normative release that you currently desire. Either party may be happy (or not) with the current state of play, but neither has a unilateral right to exit the game. In this sense, each seems like the currently contented slave—he may feel happy now, but the right to set his course resides with his master. Yet there is no normative asymmetry between us.

30. As an anonymous referee points out, Kant argues (in an argument distinct from the slavery argument) that individuals have a duty to exit the state of nature. That argument is, I think, summarized by Ripstein. According to Ripstein, “the state of nature is morally incoherent from the standpoint of rights, in three distinct ways.” First, acquired rights are “a morally necessary extension of freedom,” but Kant argues that it is impossible to acquire rights in the state of nature. Second, acquired rights cannot be enforced in the state of nature. Third, the application of rights to particulars “can only be determined in accordance with standards that are not unilateral exercises of the judgment of one of the parties to a dispute.” I am not sure how this applies to persons who wish to enter something like a state of nature with each other. If they entertain entering this state of nature, they must be unconcerned with the rights that they will lose. For what it is worth, I do not think that a gladiatorial contest needs to involve such a comprehensive waiver. If the contest does have rules (regarding time limits or weapons choices) then the parties continue to rely on a background state of legal enforcement. The contestants have agreed to a very dangerous waiver, but they have not agreed to a waiver that places them in a state of nature. Ripstein, supra note 6, at 146.

31. Ripstein, supra note 6, at 140.

32. Id.

33. Id. at 133; Co. Litt. f. 127 a-b (1603).

34. Ripstein, supra note 6, at 143 n.41.

35. For further discussion of Kantian approaches to these issues, see Cholbi, Michael, Kantian Paternalism and Suicide Intervention , in Paternalism: Theory and Practice (Coons, Christian & Weber, Michael eds., 2013)Google Scholar, at 115–133; Cholbi, Michael, Kant on Euthanasia and the Duty to Die: Clearing the Air , 41 J. Med. Ethics 607 (2015)Google Scholar.

36. Ripstein, supra note 6, at 143 n.41. To be fair, Ripstein has not attempted a detailed analysis of this issue. But it seems to me that his Kantian approach needs to deal with the question of assisted death. It also seems to me that a Kantian approach must follow the general track that Ripstein sets. If so, then a Kantian approach to assisted death needs to address the problems outlined here.

37. Dworkin, Gerald, Harm and the Volenti Principle , 29 Soc. Philos. Policy 309, 316–317 (2012)Google Scholar.

38. Brock, Dan W., Voluntary Active Euthanasia , 22 Hastings Cent. Rep . 10, 10 (1992)CrossRefGoogle Scholar.

39. Indeed, you might work from stronger restrictions; you might act on the permission only if you believe both that this is what I want and that what I want is rational (in my true interests).

40. Ripstein, supra note 6, at 141 n.39.

41. Of course, for reasons discussed above, most VE cases would be unlikely to involve an obligation to kill.

42. Ripstein, supra note 6, at 141.

43. Id.

44. MMA may seem different from boxing here, because its fighting continues once a fighter is knocked, or taken, to the ground. But this difference is entirely superficial. An MMA contest continues to its time limit unless one opponent submits or becomes unable to continue to defend himself. An MMA contest, because it combines boxing with other combat sports such as wrestling and Brazilian Jiu-Jitsu, continues on the ground to test a grounded fighter's “bottom game” and his opponent's “top game.” Those who balk at such an explanation need to learn a few things about reversals, armbars, and triangle chokes. An MMA fight remains a contest of skill that involves risks precisely because, like a boxer, a fighter does not purport to abandon his right to self- defense. That right, as a normative matter, engages precisely when the fighter either chooses to end the contest or becomes unable to defend himself.

45. Ripstein, supra note 6, at 141. For a thorough criticism of professional boxing, see Dixon, Nicholas, Boxing, Paternalism, and Legal Moralism , 27 Soc. Theory Pract . 323 (2001)Google Scholar.

46. Ripstein, supra note 6, at 142.

47. When does an injury become severe enough to constitute a wrongful loss of purposiveness? I use the term “injury” in a very general sense here, covering any loss of capacity or function, including pains and disorientations that would not last long after the duration of the contest. To focus our discussion, assume that the sufferer of the injury in question consents to the injury, not just its risk. Now if we are to have any kind of contest of strength or fighting skill, we must be able to consent to injuries in the weak sense that I have recognized here. This seems to fall in line with the general idea of consenting to perform certain actions for another person. If I agree to mow your lawn today, then I will not be able to do other things today. My body is not at my disposal in the way that it would be without the agreement. Similarly, if I agree to absorb such pain and discomfort as I am unable to avoid within the contest rules, my discretion to act as I please is to that extent diminished. But this is unproblematic because I have made your testing of your physical skills part of my purposes—just as I might include your goal of getting your lawn mowed as one of my purposes. In either case, control over my own person is fully restored when the tasks specified within our agreement are completed.

Agreeing to have one's arm removed, by contrast, is agreeing to a permanent loss of purposiveness—there is no end point where my capacities are restored. This is unacceptable. But how should we regard somewhat less serious, nonpermanent losses of function that still outlive the contest in which they occur? Consider the following examples: a broken forearm that takes three months to heal; a serious concussion that requires two months for full recovery; a facial laceration that takes six weeks to heal. Such examples are quite common in combat sports (all three are fairly frequent in MMA). It seems plausible to say that the first two injuries, if permanent, would fall outside my normative power of consent. Long-term brain injuries that result from the cumulative effects of many bouts raise other issues. See Hutchison, Michael G. et al., Head Trauma in Mixed Martial Arts , 42 Am. J. Sport. Med . 1352 (2014)Google Scholar; Ngai, K.M. et al., Injury Trends in Sanctioned Mixed Martial Arts Competition: A 5-year Review from 2002 to 2007 , 42 Brit. J. Sport Med . 686 (2008)Google Scholar.

48. Ripstein, supra note 6, at 133.

49. Barry Strauss, The Spartacus War (2009), at 15–17. Strauss uses the term “producer” for a position that is somewhat similar to that of a modern boxing promoter.

50. Taken, I must admit, from a rather salacious cable television version of the Spartacus legend.

51. Once our contest is engaged, it would be hard for me to make this maneuver without first suffering some legitimate attacks from you. But at some point I might be able to break contact, giving me sufficient time to make myself vulnerable in this way (or perhaps giving the referee sufficient time to recognize my effort and intervene).

52. Gregor, supra note 9, at 426–429 (6:276–280).

53. Perversely, I might claim that I am simply following my own obligation to attack you (which I cannot myself rescind). But the situation is now transformed—I began with an obligation to provide deadly attacks for you to repel. By revoking your obligation, I transform the agreement into one in which I am obliged to kill you, not to provide you with a test of your skill. But that is not what you agreed to in the first place.

54. The idea that you choose my fate in the same fashion as my master in an obligation slavery or single waiver slavery agreement could choose my fate reflects a recent Hollywood model of combat—Robert Downey Jr.’s Sherlock Holmes calmly calculating each of his moves in a rather brutal bare-knuckle boxing match. The following story seems more plausible. A master swordsman secured a condemned criminal as an opponent. He wished to know whether he could subdue the criminal with nonlethal attacks. In the short contest, the master concluded very quickly that mercy and restraint were too risky. His opponent, while not particularly skilled, attacked with the reckless abandon of a man with nothing to lose. Unsettled by the condemned man's ferocity, the master struck to kill at his first opportunity. The story is not my invention, but I cannot recall its source.